Constitutionality Complicated by Reality: The Cost of the Bail Bond System
After dealing with an abusive landlord who rented her an asbestos-filled home, Felicia (not her real name) ended up homeless. At one point, Felicia and her husband fell asleep in a park, only to be woken up by the police and detained for trespassing.The police went through their things and found a BB gun in Felicia’s bag.
Felicia’s husband was granted a promise to appear. That is, there was a written agreement that he would turn up to his trial, based on factors such as his employment, ties to the community, and previous criminal record.
Felicia, on the other hand, was charged with carrying a dangerous weapon and jailed on a $5,000 bond; she wouldn’t be able to leave without producing this hefty sum.
The gun in Felicia’s bag did not belong to her, but she wasn’t able to explain. To make matters worse, Felicia had advanced stage cancer and serious mental health issues, including suicidal ideation. The couple couldn’t afford the bail, and Felicia was incarcerated in the York Correctional Institution in East Lyme, Connecticut without any of her medications.
Felicia’s story reflects the stories of almost 450,000 individuals currently in jails across America who are awaiting trial. They can remain in jail for days, months, or even years when they can’t afford to pay their bail. The experience can have serious implications on their lives: they can lose their jobs, their housing, and custody of their children.
The bail bond system originated in England during the Middle Ages in order to keep people out of jail while they awaited their trial.
Ironically, the reality of today’s system is exactly the opposite.
“It’s exploitative. The U.S. is one of the few countries in the world where money bail still exists,” explained Patrick Sullivan ‘18, an American Studies major who works at the Connecticut Bail Fund, in an interview with The Politic. The Connecticut Bail Fund posts bail for community members and ensure that their clients receive proper social services while they await their trials.
Connecticut’s Judicial Branch establishes that once a defendant is charged with a crime, a judge decides whether to assign bail and how much should it be. Then, the defendant has two options: to pay the bail or stay in jail.
Most people, however, can’t afford to pay their bails. Even in New York State, where bails are lower than the national average—$500 or less in some nonfelony instances—only one out of ten defendants are able to pay, according to a 2015 New York Times article.
Even a few days in prison have significant impacts on defendants’ lives.
“They miss one or two days [of work], and they might get fired from their job. [They] also have children, [who] have to go to a family member,” explained Sullivan.
Meanwhile, defendants are suffering inside jail, sometimes enduring violence, without access to proper hygiene products and medicines.
In a 2014 study of the Robert N. Davoren Complex, former U.S. Attorney of New York Preet Bharara conducted a study on the violent environment of the jail, where inmates had “broken jaws, broken orbital bones, broken noses, long bone fractures, and lacerations requiring stitches.”
On top of physical violence, there is another looming problem in jails.
“Suicide is the single leading cause of death in our local jails”, said Salil Dunani, a Yale Law student in a Ted Talk. Dunani worked in the nonprofit Equal Justice Under Law, which is dedicated to fighting wealth discrimination in the justice system.
Dunani argues that this suicide problem has to do with the lack of mental health care inside jails.
“Thirty percent of women in local jails have serious mental health needs, but only one in six receives any mental health care while in jail,” said Dunani. Felicia was not one of these women.
When families are desperate to pay defendants’ bails in the midst of all of these problems, they go to profit bondsmen.
Profit bails are companies that loan out bail money with 10% interest. This fee is not refundable, even when defendants are found innocent. Most families can’t afford to pay the fee immediately and end up with a payment plan designed by the company, which can leave them in debt for months. These kind of businesses are only allowed in the U.S. and in the Philippines.
Many profit bail businesses are run by global insurance companies. According to a 2017 study by the Color of Change and the ACLU Campaign for Smart Justice, two global insurance companies—Tokio Marine America and Fairfax—make almost $50 billion in the profit bail business. “With a steady stream of profits with little risk, it’s no surprise that the bail insurers lead efforts to fight reform, write the rules, and protect their cash flows,” the study states.
Many activists in California, Washington, D.C., New Jersey, New York, and Connecticut have pushed for changes in legislation that prohibits money bail, but both profit bail businesses and private prisons combat their efforts.
“The prison industrial complex generates a lot of revenue for private prison companies,” Sullivan told The Politic. “They advocate really hard through political campaigning, through lobbying, through money spent on political campaigns to make sure they keep those prison contracts.”
In some cases, families can’t pay the interest, and some defendants don’t have families fighting for them. In order to avoid spending more time in jail, they plead guilty.
“Whenever someone in Connecticut is charged for a crime, that person has, theoretically, the constitutional right to be presumed innocent until proven guilty,” explained Brett Davidson, one of the founders of the Connecticut Bail Fund, in an interview with The Politic.
But this constitutional right is complicated by reality.
“People might take the plea bargain even if they are innocent to get out of jail and back to their lives,” explained Davidson. He called this “the criminalization of poverty” because defendants plead guilty because they can’t pay, regardless of whether they are actually guilty. In Felicia’s case, the judge offered a plea bargain of 120 days in jail, but given her health state, even that was too dangerous.
The “criminalization of the poor” is a complex problem that extends beyond the bail system. It involves homelessness, drug addiction, and discrimination, among other factors.
“I doubt that [eliminating bail] would [eliminate the problem] because I don’t think it’s the source of the problem,” said James Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law in an interview with The Politic. “We need better shelters, better job training, better social services. All of these things are linked to the justice system, so we need to have change in those areas before we can have an ideal pretrial system.”
According to the National Criminal Justice Reference System, people of color are twice as likely to be trapped in the bail system.
“Our criminal justice system, like every criminal justice system in the world, treats minorities disproportionately harshly,” explained Whitman. “Minorities of all descriptions are hit harder by the injustices in the system including the bail system.”
Ian Ayres, William K. Townsend Professor of Law at Yale Law School, studied the justice system and its impact on minorities.
“It was evident that the judges were basing bail bond decisions on something that was correlated with race and was not correlated with the propensity to flee. So judges might have wrongly thought that some characteristics of Black and Hispanic defendants made them a higher flight risk, when it didn´t,” Ayres told The Politic.
Among the efforts to combat this system are non-profit bail funds. A small group of activists, Yale students, and professors started the Connecticut Bail Fund.
“[The Connecticut Bail Fund] posts bails [that are] 5000 dollars or under in New Haven,” explained Sullivan. “We post for any crime. We don’t discriminate on charge. The reason for that is people are supposed to be presumed innocent until they are proven guilty and one of the fundamental flaws of the bail bond system in the U.S. is that it presumes guilt.”
Their goal is not to escalate the bail fund to bail everyone out because it wouldn’t be a sustainable solution. Davidson believes that one of the benefits of the bail fund “is impacting case outcomes, allowing people to defend themselves from a position of freedom.”
When defendants stay in jail to wait for their trials, 92 percent of them are convicted and receive longer sentences because it is more difficult to fight a case from a position of detention, and because the defendants are more likely to pledge guilty. A 2012 report by the New York City Criminal Justice Agency showed that pretrial detention was the most important predictor of conviction.
Both Davidson and Sullivan agree that the most important political aspect of the Connecticut Bail Fund is that it has become a community organizing tool.
“What we hope and what we are trying hard to do now is use the bail fund as an organizing force. The people for whom we post bail want to change the system,” said Sullivan.
Some states and cities have also made legislative efforts to change this system. This is important because mass incarceration is a local problem: nine out of ten people detained are in city and county jails, not in federal ones. Washington, D.C. and New Jersey, for example, have replaced money bail with a pretrial risk assessment program.
Davidson is skeptical of this alternative.
“I’d like to see reform efforts not focusing on developing risk assessment tools or alternative ways to lock people up, but, instead, closing down jails that lock people up while presumptively innocent,” explained Davidson.
He considers that the elements that current risk assessment tools take into account, such as education, housing, and community ties, are “things correlated to access to privilege” that still target marginalized communities.
House Bill 7044—Connecticut’s reform to the bail system—signed by Governor Dannel Malloy with bipartisan support in June of 2017, eliminates bail for low level, nonviolent misdemeanors.
“It is good. It means that a lot of people who would have been in jail will be out of jail. However, it props up this false distinction that is made between misdemeanor cases and violent crimes. That distinction is a very political salient one,”Sullivan told The Politic. In 2016, Governor Malloy proposed an initiative to eliminate bail for those who committed misdemeanors regardless of their criminal record, but it was not passed.
In New York City, activists have considered creating a city-wide fund through nonprofit community bail funds to get people out of jail.
But the actual problem is that too many people are being arrested, many of them due to low-level misdemeanors. Criminal courts would be overwhelmed if all of these people had trials. The bail system is a tool to get people to plead guilty and leave without having a trial. There are so many people incarcerated in the first place because the prison system is a highly profitable one. Acknowledging these facts changes the way reforms should be pursued.
“I think that real change has to start before the point of arrest,” said Davidson.
“We need more imagination in our city government, our state government, and our federal government,” he said. ”Just changing the question of ‘how can I punish this person’ to ‘how can I help this person?’”
After Felicia spent a week in the York Correctional Institution, the Connecticut Bail Fund posted her bail and immediately dropped her off at a hospital for her to receive her chemotherapy. Fighting her case from a position of freedom, she received a much better plea deal and an unconditional discharge, which means no time in jail or probation. Today, she is getting a new apartment with her section 8 and receiving the healthcare she needs. She has also decided to become a volunteer at the Connecticut Bail Fund to support other people like her.